TOV Injury and Safety Blog

Federal Court rejects claim that expert testimony is too speculative

V & M Star Steel sued Centimark Corporation, claiming that it suffered more than three million dollars in property damage when roofing contractors negligently left bundled steel on V & M's roof during repairs.  The Plaintiff argued that when roofers encountered  a rain storm, they left supplies in a haphazard and unsafe condition, and bundled steel slid down the roof, destroying structures on the ground below.

Child cannot sue Meijer for second-degree burns suffered as a result of leak from pre-cooked deli chicken

Meijer's deli serves pre-cooked whole chickens which are maintained at a temperature above 140 degrees to prevent the growth of bacteria.  11-year-old Bailey Malthaner accompanied her mother to the grocery store after having a tooth removed and was seated in the main compartment of her mother's shopping cart.  When her mother purchased the chicken in an enclosed plastic container, Bailey asked if she could hold it.  Almost immediately she started to scream and mom discovered that hot grease was leaking from the plastic container and burning Bailey's leg.

Federal Court allows injured workers to sue employer, insurer and "independent" [IME] doctors for fraud

A group of Cassens Transport Company employees who had been injured on the job sued Dr. Saul Margules, Cassens, and Cassens' self-insured claims manager, Crawford & Company, alleging that the three conspired to deny benefits to injured workers.  The suit alleged that Crawford consistently retained unqualified and biased physicians to render fraudulent reports disputing the workers' injuries or medical condition.

Injury at amusement park results in money verdict--but for the amusement park and against victim.

Marilyn Lukas attended the Carnival at the Taylor Summer Fest with her husband and kids.  As they were walking down the midway near the "Beer Bust," a softball struck her in the face, broke her nose, lacerated her cheek and took some of the pleasure out of the family's outing.  Lukas sued the operator of the Beer Bust game and the operator of the carnival, alleging poor design and management of the ball-throwing game.  To make a long story short, the Carnival operator argued that Lukas couldn't prove that the Beer Bust was the source of the ball that struck her, and the jury concluded that the operator wasn't responsible for Lukas' injury. 

The Carnival operator then sued the Beer Bust operator to recover its defense costs of $117,000.00.  The lower court entered a judgment for that amount, based on the Beer Bust operator's indemnity contract with the Carnival (agreeing to hold the Carnival harmless for any claims arising out of the Beer Bust's activities).    The Court of Appeals reversed, holding that given the jury's verdict in the case brought by Lukas, the indemnity contract language was ambiguous in attempting to shift the defense expenses to the Carnival.  We guess there was "due process" here, but it is hard to see this result as a common sense example of a "system of justice."   Do you think this is what most people think they are buying when taxpayers fund the operation of a court system?  Certainly insurance companies are getting their money's worth.

Painter loses common work area injury claim

James Shawl suffered injury to his back when a large electrical box  with protruding screws fell and struck him while he was working as a subcontractor painting the entrance to the Saginaw County Event Center.  The General Contractor on the project was Spence Brothers construction company.  Shawl sued Spence Brothers, arguing that it negligently fulfilled its duty to protect employees working in the common area from construction hazards.

The Court of Appeals upheld the dismissal of Shawl's claim.  It ruled that the electrical box did not pose a substantial risk of severe harm and that a significant number of workers were not endangered by the box.  Therefore, the risk it posed did not create a "common work area" duty on the part of Spence Brothers to protect the employees of subcontractors.

Speaker who fell off the back of crowded stage cannot sue Hotel

Norma Chesser was one of several speakers at an event held at the Radisson Plaza Hotel at Kalamazoo Center.  After concluding her talk, she left the podium to return to her seat and "disappeared" off the back of the stage, injuring her shoulder.  She sued the Hotel, alleging that the stage arrangement, positioning speakers in close proximity to a fall hazard without any railing, was unreasonable.  Her attorneys presented the court with industry standards that had been violated by the arrangement and with admissions by hotel employees recognizing the continuing unsafe condition.

Michigan Supreme Court reverses Court of Appeals' holding that contract immunity does not apply to protect defendant from its own negligence.

In June, the Court of Appeals ruled that a contractor was not immune from negligence simply because it signed a contract with the City of Royal Oak that imposed certain safety requirements.  The two concurring Court of Appeals judges determined that the injured party, Frederick Price, had pleaded a duty owed by the contractor to him that was "separate and distinct" from the contractual duties it assumed to the City. 

Weather conditions "favorable" for the development of black ice do not constitute an adequate foundation for explaining fall

Terry Eakins fell on the premises of Copeland Auto Repair after getting out of his AT & T van.  Eakins was on the property to install phone service.  He explained that his foot slipped on something, but that he never identified the cause of his fall.  He argued that since the landowner admitted that conditions were "favorable" for the development of black ice, the jury could infer, without further evidence, that black ice was, indeed, the cause of his fall.  The court said that will be the day. 

Contractor working on Dow Chemical property cannot sue over ice near building

William Osantowski was returning to the Dow building from an errand to his car when he slipped and fell on ice, suffering injury.  He claimed he did not see the ice until his fourth trip between the parked car and his employment location and argued that Dow was negligent in clearing snow and ice from its lot.  Dow argued that it owed no duty to remediate the hazard because the ice was "open and obvious" and had been  easily located by one if its employees when he exited the building after Osantowski's injury.

Bar not legally responsible for returning lost car keys to drunken patron

Devon Allison was at the Mo-Doggie's Bar and Grill in Genessee County with friends.  They were served to the point of visible intoxication and asked to leave.   Allison left her keys at the bar, where they were found by an employee.  She returned some time later, obtained her keys from the bartender and was then killed in a fatal car crash.  Her family sued the bar, arguing that it was negligent in returning car keys to a person known to be visibly intoxicated.

The Court dismissed the family's case.  It held that a statute which precludes a visibly intoxicated person from suing the bar that served him or her to intoxication also precludes this lawsuit.  Even though returning the keys may have been negligent, the court deemed the negligence so inherent to the illegal sale of alcohol--and the legislature's limitation on liabilty for an illegal sale--that the family's action was not allowed.

Workman injured on Community College sidewalk cannot pursue claim

Brian Little was employed by a sub-contractor working inside a building on the campus of Macomb Community College.  He and a co-worker were making several trips inside the building, carrying equipment used in the renovation, when he fractured an ankle in a fall on ice.  He made a claim against the general contractor and the College, arguing that they were responsible for eliminating hazards on the sidewalk.

Underage press operator cannot sue owner of unguarded press

Joshua Sparks sued Century Tool & Die and several other defendants after severely injuring both hands operating an unguarded press.  The Court of Appeals ruled that the lower court erred in deciding the factual issue of who owned the press, but still upheld the dismissal of the claim against Century.  It ruled that the owner of a press owes no duty to assure that it is properly guarded once it is provided to other parties to operate.  Of course, the underaged employee cannot recover damages from his employer, either, because he is limited to workers' compensation benefits.  And, most likely, since he retains some residual earning capacity and worked for a low wage, he will get nothing in the way of wage loss if the Republicans are successful with "worker's compensation reform."

Woman loses claim arising out of fall from ladder

Deborah Adamczyk suffered a severe head injury when she fell from a ladder provided by K-Mart to employees of Adamczyk's employer, Footstar Corporation.  Adamczyk sued K-Mart, alleging that the ladder was defective because the rubber footings under three of its legs were missing.  She relied on a previous employee's testimony to confirm that the ladder had been in a defective condition for several years and that K-Mart was aware of the hazard it represented.

Court dismisses action against owner-general contractor where scaffold collapsed

todd Kelly sued Albert Kohler in Leelanau County Circuit Court after he suffered catastrophic injuries in a scaffolding collapse.  Kelly argued that the scaffolding was defective and that Kohler, the owner acting as his own general contractor, was liable for this safety defect in a common work area. The Court rejected this claim, however, finding that since only two persons would be utilizing the scaffolding, it did not present a wide enough risk to invoke common work area liability.

Court upholds hold harmless agreement executed by volunteer employee

Patricia Brown was injured in a fall at the Northwoods Animal Shelter.  She attempted to sue, however, the shelter's insurer sought dismissal of her claim, relying on the hold harmless agreement she was required to sign before beginning work as a volunteer.  Brown's attorneys argued that the hold harmless agreement or "release" was not valid because such an agreement requires consideration and she did not receive any.  The Court dismissed this argument and held that allowing Brown to work with the animals was adequate consideration for her waiver of rights.

Court of Appeals sends worker's fall claim back to Oakland County for trial

George Frommert fell twenty feet from a defective scaffold after stepping from a bucket truck to the scaffold to gather construction debris. The scaffold had been moved to its current location by a sub-contractor, Teera Construction Company, and left in an unstable condition without warnings.  Frommert sued Teera for common law negligence.  The trial court and two judges of the Court of Appeals agreed that Teera was entitled to summary disposition, relying on a mistaken interpretation of the Fultz "contractual immunity" holding by the Engler Majority of Michigan's Supreme Court.  Frommert appealed to the Michigan Supreme Court.

Mini-mart owner has no insurance coverage for shooting man vandalizing his parking lot

Elias Chammas kicked a patron out of his convenience store after identifying him on security tape as having accompanied another man who stole a case of beer.  The would-be patron complained to his brother, who returned to confront Chammas and created a verbal altercation.  After he was kicked out, he began slinging around packing crates, and Chammas fired two shots with a handgun.  Both struck the brother, who then sued Chammas in a civil action.  Chammas sought coverage through his commercial liability carrier, Auto-Owners subsidiary Home-Owners Insurance Company.  The Court dismissed Chammas' claim because his intentional act of shooting--even if he didn't think he'd hit the vandal--was not an "occurrence" or an "accident" under the liability coverage.

Injured oil derrick worker's family cannot sue owner of well

Franklin D. Davis, Jr., suffered very severe injuries when he fell a little over 20 feet after a cable snapped.  He died some time later and his family brought a legal action against the owner of the well, KCS Resources, Inc.  His family's attorneys argued that KCS was negligent in supervising the activities at the well-drilling site and in failing to maintain a safe "common work area."  The Court of Appeals affirmed a decision by the trial court dismissing the claim.  It noted that the owner of the well had sub-contracted the work to Davis's employer and that no other sub-contractors worked on the derrick.  Therefore it was not a "common work area."  Since the owner was no longer in possession of the site, the activity was not "ultrahazardous" and the derrick wasn't a common work area, the owner owed no duty to Davis with regard to safety.

"Gun enthusiast" who lost an eye cannot sue manufacturer or gun owner

Lynn Walton sued his friend Larry Miller, Midway Arms and Pacific Tool & Die after Miller's rifle exploed while Walton was firing it.  Walton, who lost an eye,  argued that Miller was negligient in placing a slot in the rifle chamber to accommodate a Sako-style exctractor; he argued that the other Defendants (who designed and built the extractor) were negligent in selling a product that was unsafe and prone to foreseeable mis-use by gun owner-purchasers.

Elderly handicapped woman's fall on ice is not actionable

74 year-old Mary Walder was to work bingo night at St. John the Evangelist Parish in Genessee County on February 27, 2008.  It had snowed two inches the day before, the parking lot of the church was plowed, then the weather warmed above freezing and re-froze during the following day.  According to several church members, the parking lot was in "bad condition" with black ice throughout the front and rear lots.  On her way into the church from her handicapped spot, Ms. Walder fell and suffered a severely fractured ankle requiring placement of a dozen screws.  She filed a claim to force the church to pay her medical.  The 2-1 majority of the Court of Appeals threw her claim out.

Consumer Product Safety Commision votes 5-0 to seek guarding on table saws

The U.S. CPSCvoted 5-0 on October 5, 2011, to initiate an investigation into regulating tables saw safety.  It noted that they cause more than 4,000 serious finger, hand and arm injuries each year.  The agency plans to examine technologies such as that offered by SawStop LLC which will purportedly stop a blade instantly when human flesh is encountered. The Power Tool Institute (meaning Stanley Black and Decker, Ryobi and other manufacturers) objects to adopting SawStop's technology for fear that it "could create a monopoly" for the company.

Oil Company loses appeal: must pay non-economic damages to woman after destroying her home

High Pointe Oil Company pumped 400 gallons of fuel oil into the basement of Beckie Price's home, creating an environmental hazard that required the destruction of the home and left Price homeless for nearly two years. She sued for negligence and recovered a verdict for the property damage, plus $100,000.00 in non-economic damages.  High Pointe's insurer appealed, arguing that it could not be held responsible for Price's non-economic injuries (that is, her displacement from home, loss of her home, and mental anguish and inconvenience). 

Oil Company loses appeal: must pay non-economic damages to woman after destroying her home

High Pointe Oil Company pumped 400 gallons of fuel oil into the basement of Beckie Price's home, creating an environmental hazard that required the destruction of the home and left Price homeless for nearly two years. She sued for negligence and recovered a verdict for the property damage, plus $100,000.00 in non-economic damages.  High Pointe's insurer appealed, arguing that it could not be held responsible for Price's non-economic injuries (that is, her displacement from home, loss of her home, and mental anguish and inconvenience). 

Court analyzes landlord's responsibility for crime on premises

In a 20-page unanimous opinion, a panel of the Court of Appeals completely a thorough analysis of the existing rules regarding a landlord's liability for criminal acts of third parties.  It started with the clear expression of previously-adjudicated Supreme Court policy:  "public safety is the business of government and not private property owners." On the basis of this arguable statement of policy, the Court concluded that a landowner--whether merchant or apartment owner--owes no duty under Michigan Supreme Court rulings, to "make the property [be it a parking lot or whatever] safer than the adjacent street.  The landowner's only remaining duty, after Engler Majority analysis, is to promptly call police when there is foreseeable danger to an invitee. 

On the basis of this statement of law, the court dismissed claims against a security company hired to protect residents of an apartment building, even though officers of the company failed to respond to a gun-wielding intruder who ultimately shot and paralyzed Devon Scott Bailey.  The Court ruled that the security company owed no common law duty to guests of the apartments' residents. It kept alive, however, the claim against the landowner, since its agents did not respond to an active, criminal threat, in a timely manner.  The case is Devon Scott Bailey v. Steven Gerom Schaff, et al., from Genessee County.

General contractor not liable for fatal fall from unprotected scaffolding

Amy Felty sued Skanska USA Building, Inc., after her husband suffered a fatal fall while working on the facade of the University of Michigan Museum of Art.  Felty worked for a subcontractor of Skanska. His employer had failed to erect a guardrail on the scaffolding, and Felty argued that as the general contractor, Skanska owed a duty to all workers on the "common work site" to enforce safety precautions.

Woman's claim against cleaning service is reinstated for discovery

Patricia Billiau was badly hurt when she fell while fulfilling security measures during the opening of her employer bank's branch.  Billiau fell after stepping from a wet carpet to  a newly-waxed wood floor:   she claimed that the fall was caused by a combination of the new wax job and her wet shoes from the drying carpet.  She argued that if the overnight cleaning had been performed properly, the carpet would have been dry, and that she should have been provided with some form of warning of the conditions.

The trial judge dismissed Billiau's claim, holding that the cleaning services, Suburban Copntractor Cleaning, Inc., and Grand Rapids Building Services, Inc., owed Billiau and other employees no duty. After the decision in Loweke v. Ann Arbor, the Court of Appeals returned the case to the lower court to examine whether the cleaning service violated a common law duty to complete the cleaning tasks in a reasonable manner or to warn of the potentially dangerous condition existing prior to complete drying.

Case returned to the trial court to examine "contract immunity."

Olivia Boitos sued Dynamic Visual Productions and several other defendants after shewas hurt in a dance competition.  The case was initially dismissed through the application of "contract immunity" as explained in Fultz v. Union-Commerce, a holding suggesting that a contract between two parties eliminated any safety duty to third parties.  After clarification of the Fultz holding in Loweke v. Ann Arbor Ceiling, the Boitos case was returned to the lower court to assess whether Boitos was injured by someone who violated a duty of safety independent of the contract obligation.  Loweke essentially held that while a safety duty to third-parties won't be created by contract terms, it may exist independently as a matter of "due care."

Contractor responsible for repairing jewelry display is not responsible for injury to saleswoman

Gena Smith was responsible for opening the jewelry displays at the Oakland Mall J.C. Penney store.  The display collapses during off hours to render it more secure.  When it malfunctioned, store employees contacted James Hughes, the on-site technician for Johnson Controls, to repair the display.  Johnson did not attempt the repair but instead hired an independent contractor to do the work.  He left the premises while they were working on the display, and did not inspect their work the following morning.

Supreme Court reverses another "contract immunity" claim

Several years ago, Michigan Supreme Court rulings that appeared to grant broad immunity to contractors resulted in a rash of dismissals involving personal injury claims.  The "Fultz" case decided by the high court was interpreted as granting immunity as against third-party injury claims. whenever an injury arose out of duties spelled out in a contract. 

Last month the Michigan Supreme Court ruled in Loweke v. Ann Arbor Ceiling  & Partition that the Fultz holding had been widely misinterpreted and did not afford such broad immunity. This month, the Supreme Court overturned the dismissal of George Frommert's injury claim, citing the Loweke opinion and remanding the case for further consideration by the Court of Appeals. 

The vacation of the Court of Appeals opinion and remand to the court vindicates Judge Elizabeth Gleicher.  She had dissented from the original Court of Appeals decision, arguing that the majority applied the Fultz contract immunity defenses too broadly.  Her cogent dissenting opinion in Frommert correctly anticipated the ultimate ruling by the Supreme Court.

Court holds insurer is not liable for injury caused by "complete product" or to fulfill implied warranty

Auto-Owners sued its insured, Keizer Morris, Inc., and Gary Hayward, seeking a declaratory judgment that it was not liable for injuries Hayward suffered due to a defective product produced by Keizer Morris.  The Court of Appeals did not explain either the injury suffered or the nature of the alleged defect, simply stating that Hayward was injured in "an explosion of an 'asphalt hot box reclaimer'."  It also did not explain the manner in which Hayward argued that the reclaimer failed to comport with an implied warranty of fitness for the intended purpose. 

The holding was limited to the fact that AutoOwners was not obligated to defend Keizer-Morris or to indemnify Hayward for his injuries, because an exclusion in the coverage section of the AutoOwners policy made the policy inapplicable to injuries caused by "completed operations."

Judge improperly dismisses injury case for lack of scientific evidence

Robert Avery worked as a laborer and welder for Grand Trunk Western Railroad for 28 years before he died as a result of a brain tumor.  Under the Federal Employer's Liability Act (FELA) governing railroad employees, Avery could hold the employer responsible for injuries suffered at work, even if proof of the  "proximate cause" of the injury and damage did not rise to the normal legal threshold.  Avery's widow argued that he suffered the brain tumor and died as a result of various chemical exposures he suffered at work.  The Railroad denied any basis for proving causation, refused to provide discovery to the widow and ultimately persuaded the trial judge to dismiss the widow's claim.

Storage facility owes no duty to inspect Decedent's property

Basile Lagos owned a 1977 Olds Cutlass which he stored at the Maple Village Self Storage facility in Washtenaw County.  He would bike to the facility and work on the car during off-hours.  This was so common that he was allowed to be on the premises after closing hours.  One night, however, while attempting to re-wire a tail-light, he was trapped in the trunk lid when it closed on him accidentally. He eventually suffocated when he could not release himself.

Sears may have to pay for its "independent" installer's negligence

Marcy, Patricia and Christopher Hill sued Sears, Roebuck and others alleging negligence.  They had purchased a new home and bought a new, electric dryer from Sears.  They did not realize, however, that the previous owners of the home had removed a GAS dryer and failed to disconnect or "cap" the gas line.  The Sears installer brought in the electric dryer, did not address the uncapped gas line and in fact located the new dryer in a manner that obscured the uncapped line.

Court of Appeals anticipated Supreme Court's retreat on "contract immunity."

Two judges of the Court of Appeals formulated an opinion this month in Price v. City of Royal Oak that anticipated the Michigan Supreme Court's retreat from an activist interpretation of  "contract immunity."    Just last week six Justices of the Supreme Court agreed that simply signing a contract does not confer immunity on the contracting parties from a common law duty of reasonable care to third-parties.  The Court of Appeals majority in Price apparently anticipated this development when they overturned summary disposition for a sidewalk construction contractor.

Ski instructor assumes no duty to children taking class

Frederick Sieradzki suffered a fractured leg when he was struck by an out-of-control skier while taking a beginning snowboarding lesson.  His mother sued the instructor and Mt. Holly Resort, alleging that the instructor was negligent in exposing Frederick to injury.  The Court of Appeals upheld the lower court's dismissal of Frederick's claim, deciding that the instructor owed no duty to Frederick.  That would be news to most parents who sign their kid up for skiing or snowboarding lessons.

Driveway ice should have been noticed by visitor but not by owner.....?

This week the Court of Appeals upheld the dismissal of Nicholas Lawson's lawsuit against Cherylene Norton (and her insurer).    Lawson suffered a severe ankle fracture that required multiple surgeries while walking up Norton's driveway to perform a repair estimate.  He said that he fell on ice that he did not see because it was clear.  He and others testified that the temperature was in the 40s and that it had not snowed in several days.  He also testified that there was no snow or ice on the ground, although he also told the defense attorney, on cross-examination, that pictures taken by the Defendant four days later "accurately depicted" the condition of the driveway and defendant's home:  those pictures showed snow in the area.

Electric utility not responsible for dropping wire that draped over road, striking motorcyclists

Steven Shievely and his wife Carol were biking on Springbrook Road in Jackson County when they struck a nearly-downed electrical power line operated by Consumers Power.  The line had drooped to within three feet of the ground after a tree limb struck a cross-arm on the utility pole, fracturing the cross-arm and causing the line to hang slackly over the road.

The trial court dismissed the motorcyclists' case because they had not hired an adequate expert witness to testify that Consumers' maintenance practices were adequate.  The expert they did hire was a former Consumers Power Company employee who testified that the Company's safety practices were unreasonable and not in conformity with the National Electric Safety Code.  The Court ruled, however, that he did not have enough hand's-on experience with forestry practices, utility line maintenance or the maintenance standards used by other Michigan utilities to quailify him to explain to the jury what Consumers did wrong.

Parties dispute whether specks of soap scum are "open and obvious."

Milagros Dascola fell in the shower at the Lansing YMCA while washing out her swimming suit.  She noticed "specks" of dried soap scum after she fell, and sued the YMCA to cover the expense of her injuries, arguing that the specks of soap scum left the floor of the shower unreasonably slippery and hazardous.  Two judges of the Court of Appeals overturned the lower court's decision that the soap scum, by definition, was not an "open and obvious" danger because it was not "visible on casual observation."  These judges held that reasonable jurors could disagree, as a question of fact, with regard to whether the specks of soap were "open and obvious." 

Judge Deborah Servitto would have reversed the lower court and entered judgment that the condition was an "open and obvious" hazard.   She argued, on behalf of insurers everywhere, that Ms. Dascola "did not testify that the soap scum was invisible or nearly so," but merely "hard to see."  In her mind that equates with "open and obvious," although she also questoned at the same time whether the accumulation of soap scum was "unreasonable"--and apparently believed that it was not a hazard that the YMCA staff should have addressed.

Nephew can't sue for bad advice; helping homeowner doesn't make nephew an "invitee"

Joseph Dupras came to his building contractor-uncle's home to help him roof the  garage.  It had rained, but the uncle, Tim Lloyd-lee allegedly told Dupras that if his shoes "squeaked" on the roof, it would be safe to work and not slippery.  Unduly trusting, the nephew found that his shoes squeaked, attempted to cross the roof and fell and was badly hurt.  The Court dismissed his injury claim against the uncle.  The uncle's insurer argued that even though the case was based on the uncle's bad advice about "squeaking" shoes, the case was one of "premises liability" and not a negligence case.  Therefore, since the wet roof was an "open and obvious" danger, the uncle was not responsible for his bad advice. 

The Court also held that the uncle owed the nephew only the duty of a premises owner to a "tolerated" licensee, even though Dupras was on the uncle's land to assist the uncle.  The Court interpreted a prior "Engler Majority" decision to hold the uncle to the higher "invitee" duty (to warn of dangerous conditions that aren't obvious) only where the property is held open for a commercial purpose.

Court attempts to eliminate confusion over "contract immunity"

In a rare step back from judicial activism, the Republican majority of Michigan's Supreme Court retreated from the suggestion that signing a contract confers immunity on the signers from any duty to act with reasonable care toward third parties.  Lower court judges and defense attorneys had interpreted the language of the Court's 2004 Fultz v. Union-Commerce decision as doing exactly that:  granting immunity to the parties to a contract if they caused harm to a third-party.  This week, in Loweke v. Ann Arbor Ceiling, six of the seven Justices joined an opinion that rejected such a broad interpretation of Fultz.  While the Loweke holding still suggests some ambiguity, it thoroughly repudiates the suggestion that simply signing a contract with someone relieves the signer's duty to exercise reasonable care for other persons.  Some of the Justices continue to suggest, however, that the duties created within the contract won't form the basis for a suit by an injured stranger to the contract--even if the duties are performed negligently.  The victim must identify a duty of care existing outside the terms of the contract.

Injured employee cannot sue general contractor who pays comp benefits for uninsured subcontractor-employer

 Manual  Martinez-Alvarado was injured while roofing a project run by J.D. Pollard, Inc., as the General Contractor.  Pollard had hired a series of sub-contractor roofers who did not carry workers compensation coverage;  as a result, as the "principal" of an uninsured injured worker, it was obligated to substitute in for the employer to pay Martinez-Alvarado's workers compensation benefits.  In the workers compensation claims process, the worker and Pollard stipulated that Pollard had become Martinez-Alvarado's statutory "employer."

Home-made scaffolding erected 15 minutes earlier is not a common work area

The sub-contractor employer who employed Wayne Goodfallow on a job site run by  Glennwood Custom Builders built a home-made scaffolding to install 3 windows on the second floor. Within 15 minutes, it collapsed, causing Goodfallow to fall 15 feet and suffer permanent injuries.  Only Goodfallow and one co-worker were on the scaffolding and no other subcontractor's workers would have used the scaffolding, as there were manufactured scaffolding elements present at the site.  On this basis, the court concluded that the scaffolding did not contitute a "common work area" because it did not endanger a signficant number of workers.  The court pointed out that even if a number of workers were endangered, the danger involved was not "readily observeable" by the general contractor, as it had only just been erected.

The Court also rejected Goodfallow's argument that the men working below the scaffolding were endangered by the scaffolding, thus endangering  a significant number of people:  the workers under the scaffolding were held to be subject to a different danger than workers on the scaffolding.  Another fine piece of semantic analysis by Judge Kirsten Kelly, the insurer's advocate.

Carpenter can sue contractor who left unguarded holes in concrete at worksite

Michael Sanderson was badly hurt when his scaffolding collapsed after one leg of the scaffolding fell into a hole in the concrete floor of his job site.  Skyline Concrete Floors, a sub of Cahill Construction, had paved the floor, preserving numerous holes intended to be utilized as drains.  The Defendant had covered these holes with plywood, which Sanderson claimed was an inadequate protection for workers in the common area who would be working on scaffolding.  The trial court dismissed  Sanderson's claim, holding that Skyline owed no duty to Sanderson and other workers on the site.

Window blinds remain a killer of children

Once every month in the United States, a young child is strangled by becoming entangled in window blind cords.  The CPSC is once again looking at possible mandatory regulations that were estimated to add $1-2 dollars per window to the cost of manufacture.  Cordless blinds, cord covers and retractable cords have been proposed, however, the unregulated industry has consistently rejected any significant improvement in design.  The magnitude of the problem was first uncovered in the 1980s when a federal study fou nd that  41 recent child strangultion deaths were caused by drapery and cord blinds.  In 2009, the CPSC recalled 50 million Roman shades and roll-up blinds, one of the largest recalls in history.

Contractor who moved and erected scaffold cannot sue owner

Wayne Lockard was an independent contractor using a scaffold to maintain ceiling lights in Defendant Siegfried's building, when the scaffold collapsed and he was badly hurt.  The scaffold collapsed because one of the spring-loaded holding pins in a scaffolding leg was not anchored in the corresponding hole, apparently.  The owner of the building had rented the scaffolding for Lockard and others to use in refurbishing and maintaining Siegfried's property.  Lockard believed that the owner should be liable for the injury because it was his duty to provide a safe scaffolding for Lockard to use.

Satellite TV installer may be "agent" of DISH provider

Linda Sue Wolford was badly hurt in a car accident, when a dish TV installer's service truck crossed the centerline at high speed and struck her vehicle.  The installer, Phillip Pikarski, had just completed one installation, and was dropping the paperwork off at the TV-service retailer's headquarters between installations when the accident occurred.  Wolford's attorneys sued Pikarski and the retailer, however, the Circuit Court judge dismissed her claims against the retailer, Thumb Home Real Video, LLC.

Plumber's employee can sue "contract manager" for breach of common work area doctrine

Frank DeBeul, a plumber, sued the Barton Malow Company after he was injured after tripping over rebar at a Southfield School system job site.   He claimed his trip injury was caused by  Barton Malow's failure to maintain safety in a common work area.  Barton Malow argued that its only duties arise by contract with the school system and that it owed no separate common law safety duty to the Plaintiff.  The trial court agreed and dismissed DeBeul's claim.

Pipefitter suffering from asbestos-related cancer cannot sue

Earl Falk was a pipefitter for many years and suffered many years of exposure to asbestos-containing products.    He first became aware of the cancer risk at a union meeting that occurred in the  1980s.   He acquired a lung disease in 1993, but was not diagnosed with asbestosis.  In 1999, he was diagnosed with lung cancer, and in 2006 he was again diagnosed with an unrelated lung cancer.  This time he filed a law suit against various manufacturers of  asbestosis-related products.  The Court of Appeals upheld the  dismissal of his case because the judges determined that his statute of limitations ran in 1999, barring his claims. 

Lenawee County groundwater contamination case is reinstated

Thomas and Robert Robarge sued the Tecumseh Products Company, alleging that Tecumseh's manufacturing activities had diminished the use, enjoyment and market value of their property by reason of a spreading plume of groundwater contamination. The lower court dismissed their case after the Defendant raised an "Engler Majority" holding that the Defendants argued should apply to the Robarge claim. 

Blind assisted living resident can sue one of two contractors who caused his fall

Christopher Tucker was a legally blind resident at  Mavalena Assisted Care, LLC when he was hurt in 2005.  He was being guided out of the home by a care worker walking behind him, when he tripped and fell over a tool box left in front of the exit by  Richard Carson.  Mr. Carson was on the property as a subcontractor for Vincent Pipitone, d/b/a Pro Built Construction.  Carson was placing vinyl siding on the structure when he left the tool box in front of the doorway.